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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Browne v. Kingswood Primary School & Anor [2005] UKEAT 0601_04_2709 (27 September 2005) URL: https://www.bailii.org/uk/cases/UKEAT/2005/0601_04_2709.html Cite as: [2005] UKEAT 0601_04_2709, [2005] UKEAT 601_4_2709 |
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At the Tribunal | |
On 6 September 2005 | |
Before
HIS HONOUR JUDGE ANSELL
DR B V FITZGERALD MBE LLD
MR P JACQUES CBE
APPELLANT | |
(2) LONDON BOROUGH OF LAMBETH |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR PATRICK GREEN (of Counsel) |
For the Respondent | MR RICHARD HARRISON (of Counsel) Instructed by: London Borough of Lambeth Legal Services Room 205 Lambeth Town Hall London SW2 1RW |
SUMMARY
Redundancy: Fairness
On the issue of a fair redundancy, the tribunal failed to consider statute and regulations and local authority advice in relation to redundancy procedure.
HIS HONOUR JUDGE ANSELL
"We accept the Applicants' concerns and complaints that the redundancy procedure took place very quickly- However, the Tribunal were satisfied that the Head Teacher and the Chair of Governors in consultation with the appropriate LEA Officers had identified that urgent measures had to be taken in order to address the substantial concerns relating to the good running of the school. The Tribunal was satisfied that Mr Tunstall did all that he could reasonably do to keep the Applicants fully appraised of the circumstances and consulted with them. We consider that the Applicants were not disadvantaged by his actions. The Tribunal was satisfied that the Applicants were fully informed of the reasons for the proposals and they each had a fair opportunity to put their points against making their posts redundant. We were also satisfied that the Applicants could have accepted the Senior Teacher (+,3 management points) post and applied for the Deputy Head post for which they would have been automatically short-listed. No alternative was available in the circumstances "Their decision not to accept the alternative employment and not to apply for the Deputy Head post was not affected to their detriment by anything done or said to them by the Respondent. We find that they made the decision not to accept the alternative post or to apply for the position of Deputy Head having been fully apprised of all the relevant circumstances. The Applicants were both treated fairly and reasonably during this difficult period for the school and these complaints that they were unfairly dismissed were not well-founded".
Accordingly, the Tribunal concluded that the Appellant was not unfairly dismissed. The Tribunal's conclusions on race discrimination were contained in paragraphs 54-56.
"
54- The Tribunal found that the Respondent's witnesses gave clear and cogent evidence about the circumstances relating to the school's financial situation and performance that led to these redundancies.
55. The Tribunal found that race was not a factor in the proposals of Mr Tunstall or in his actions. Furthermore the Applicants had both been made guaranteed offers of jobs as senior teachers which would have been accepted. They had the option of remaining at the school or accepting voluntary severance for they both accepted the latter. We conclude that the Applicants failed to prove facts from which the Tribunal could uphold their complaint of unlawful race discrimination.
56. It is the unanimous decision of the Employment Tribunal that the Respondent did not unlawfully discriminate against the Applicants on grounds of their race".
1. To set out its reasoning and to explain which facts it found that were relevant to the finding that there was a redundancy, as found in paragraph 49
2. To set out its fu1dings as to what the consultation process was and expand on its reasoning in paragraph 5] as 10 why it regarded it as adequate
3. To explain its reasoning for its finding in paragraph 51 that the Applicants were not discouraged from accepting or applying for alternative posts within the school
4. To set out its reasoning and the relevant facts it found to support the decision in paragraph 52 that the Respondents did not act unlawfully with reference to the Education (School Governors) Regulations 1999 and S25 to Schedule 16 of the School Standards and Framework Act] 1998".
"1.4 Once the staffing needs of the school have been established they should be reported, in general terms to the Governing Body. If it is anticipated that there will be a need to identify surplus staff there must be no discussion by the full Governing Body of the matter. This is to ensure that there are sufficient Governors not involved in the original decision to hear an appeal. Failure to ensure this division of responsibilities may render the decision-making process unlawful because it will deny the right of an unprejudiced appeal.
1.5 To avoid difficulties under employment legislation, it is essential that Governing Bodies with fully delegated powers either adopt the principles set out in these Management Guidelines or comparable procedures. As part of this process the Governing Body will need to have established a staffing Sub-Committee of three governors to carry out the identification of staff and an Appeals Sub-Committee of three governors not involved in the original decision."
….
"3.2 The requirements of a fair dismissal by reason of redundancy are:
• The employee has been given as much warning as possible of the impending redundancy situation.
• Any recognised trade union or employee representatives are consulted, with a view to reaching agreement, in an attempt to avoid or minimise the need for redundancies.
• Where any reduction in staff is unavoidable, that it is achieved fairly and with as little hardship as possible.
• Any alternatives to dismissal are properly looked into, such as the availability of other jobs.
• Criteria for selection for redundancy are fair and objective and are not dependent on the opinions of individuals
.….
4.1 Prior to nominating any staff for redundancy, it is recommended that Governors should seek to achieve reductions in staffing in a number of ways:-
• natural wastage
• terminating contracts of temporary staff who have not acquired statutory employment protection rights
• voluntary reduction in hours
• redeployment to another post
• voluntary early retirement/voluntary severance
……..
7.2 Individual Consultation
Employees need to be warned that there is a possibility that they may be redundant. The timing of individual consultation will depend on the circumstances but it should begin at an early stage, generally when redundancies are at the proposal stage. This is because the purpose of consultation is to warn the employee of the possibility of redundancy at the earliest opportunity and provide the employee with an opportunity to discuss the proposals with their employer and to make suggestions as to how the redundancy can be avoided.
……
8. THE PROCESS FOR IDENTIFYING STAFF AS REDUNDANT
8.1 The steps required in identifying staff as surplus to requirement are as follows:
(a) Once the Staffing Sub-Committee is established to deal with the matter, formal consultations must be started with Trade Unions and Professional Associations.
(b) The Staffing Sub-Committee discusses proposed reorganisation/reductions in staff with representatives, they should identify posts not individual names. The Committee may need to respond in writing to representations made by the representatives before proceeding to preliminary identification of staff. A trawl for volunteers can also be carried out at this stage. Estimates for entitlements under the early retirement/voluntary severance scheme can be obtained by contacting Lambeth Education Human Resources.
(c) The preliminary identification of staff should be carried out in a sensitive and sympathetic manner and should be discussed with the individual. This should be followed up with the individual through the provision of written confirmation of the reasons for their identification. (section 8.3)
(d) The Staffing Sub-Committee hears oral representations from individuals and their representatives. (section 8.4)
(e) If the Staffing Sub-Committee decide to pursue staff reductions formal identification should be in writing. (section 8.5)
N.B. The Staffing Sub-Committee will need to hold 3 separate meetings-for the steps outlined in a, b, and c above.
(f) Individuals then have the right to appeal to the Appeal Committee of the Governing Body. (section 8.7)
(g) The LEA is informed of the decision of the Appeal Committee.
(h) Where the decision is to dismiss staff, arrangements are made to issue notice of termination of employment.(section 9)
……
8.3.1 Following consultation with the representatives, the Head teacher and the Staffing Sub-Committee may still feel that staffing adjustments are necessary. If this is the case they will need to carry out a preliminary identification process.
……
8.7.4 Governors are advised to have available at any appeal hearing:
• A budget summary
• The staff structure (shadow)
• The rationale for identifying the post/person as surplus to the needs of the school
• A copy of the letter to representatives (Section 188 letter) and any appendices to that letter.
They should ensure that they have sufficient information to properly consider the case.
"The following functions of the governing body of a school shall be delegated to a committee, to be known as the staff dismissal committee, in accordance with regulation 47-
(i) at a community, voluntary controlled or community special school, the initial determination under paragraph 25 of Schedule 16 to the 1998 Act that any person employed by the local education authority to work at the school should cease to work there;
Further, regulation 47 deals with the constitution of that committee as follows:
"Staff dismissal committee and dismissal appeal committee 47. –
(1) Subject to paragraph (6), the staff dismissal committee referred to in regulation 42(2)(a) shall include not less than three members of the governing body.
(2) The dismissal appeal committee referred to in regulation 42(2)(b) shall include no fewer members of the governing body than the staff dismissal committee the decision of which is subject to appeal.
(3) Where a dismissal appeal committee is considering an appeal against a decision of the staff dismissal committee, no member of the staff dismissal committee whose decision is subject to appeal shall take part in the proceedings of the dismissal appeal committee.
(4) The head teacher of the school shall not be a member of the staff dismissal committee or the dismissal appeal committee.
(5) No member of the staff dismissal committee or the dismissal appeal committee who is not a member of the governing body shall be entitled to vote in any proceedings of the committee in question.
(6) Where it is not reasonably practicable for the staff dismissal committee and the dismissal appeal committee each to include three members of the governing body, the staff dismissal committee shall include two members of the governing body".
Mr Brown submitted that although the oral representation committee which met on 28 October could, in effect, be designated the staff dismissal committee, he contended that the decision to dismiss had effectively already been taken by the head and chair of governors by the end of September. He argued that whilst the letter of 26 September referred to a potential redundancy, it also referred to the creation of the new posts and, indeed, the advertising of the new position of deputy head which was to occur the following week and he therefore contended that an initial determination had already been made by the end of September that the Appellant should cease to work there, this determination being made other than by a staff dismissal committee. Again, he argued that the Tribunal failed to consider the impact of this breach in relation to both the decision as regards redundancy and the overall fairness of the procedure.
"25. - (1) The Secretary of State shall appoint for England such number of persons to act as adjudicators for the purposes of this Act as he considers appropriate.
(2) Any matter which by virtue of this Act is required to be referred to "the adjudicator" shall be referred to such person appointed under this section as may be determined in accordance with regulations under Schedule 5.
(3) Accordingly in this Act "the adjudicator", in relation to any such matter, means the person mentioned in subsection (2).
(4) Schedule 5 has effect in relation to adjudicators".
Mr Brown argued that by virtue of this paragraph, the dismissal letter from the local authority should not have been sent out until after the appeal hearing had taken place. This has a further aspect of unfairness which the Tribunal failed to consider.
"29. Drawing these authorities together so far as they assist on the particular question before us, where the employee cannot be blamed for the departure from the contractual procedure, we would summarise the law as follows.
(i) An employer can be expected to adhere to the appeals procedure which is to be found in the procedural code contractually subsisting between him and his employee;
(ii) It will generally be a breach of contract for him to fail to do so;
(iii) But it is not every contractual breach of such a kind that results in the dismissal being unfair;
(iv) It is not for an Employment Tribunal to consider the hypothetical question of whether the employer would have come to the same conclusion if he had honoured or performed the correct contractual appeal procedure;
(v) It is, though, open to a tribunal to consider whether the employer, had he reflected upon the matter, would fairly and reasonably have concluded that it would have been quite futile to implement (in the detail whose absence is complained of) the contractual appeal provisions;
(vi) Absent a conclusion as in (v) the question is always whether the employee has by reason of the contractual breach been denied the opportunity of demonstrating that the reason for his dismissal truly harboured by the employer was not a reason sufficient to justify his dismissal;
(vii) If, on appeal to the Employment Appeal Tribunal, the Employment Appeal Tribunal duly holds that the sole answer that could properly have been arrived at by the Employment Tribunal to question (vi), if only the Employment Tribunal had properly directed itself on the matter, would have been negative, then and only then is it open to the Employment Appeal Tribunal to substitute its own view;
(viii) But, in other cases where the Tribunal has failed to consider or answer question (vi), the correct course is for the Employment Appeal Tribunal to remit the matter to the Employment Tribunal for that question to be answered".
Mr Brown submitted that the same approach should be adopted as regards any breach of the managing change document. Whilst not strictly a contractual document, the local authority clearly attached a great deal of importance to it and he reminded us that the Appellant was sent a copy on two occasions during the appeal procedure, the first one being as an enclosure to the letter of 25 September 2002.